Drive to raise awareness of pro bono costs

Why did the master of the rolls, the solicitor general, a former attorney general and leaders of the legal profession join forces last week?

Their aim was to launch a campaign to raise awareness of pro bono costs. Although introduced two years ago by section 194 of the Legal Services Act 2007, its use has remained modest. Lord Goldsmith QC commented that ‘we have not yet begun to see the full potential of pro bono costs’ because many lawyers are unaware of the ability to seek costs in pro bono cases.

DifferencesPro bono costs are broadly the same as normal civil costs, with two main differences. First, they apply where parties had legal representation free of charge. Second, the costs are awarded to a single prescribed charity, the Access to Justice Foundation, to support legal help for the most vulnerable.

ImportanceBefore the 2007 act, the indemnity principle prevented a pro bono ­assisted party from recovering costs. Section 194 aimed to address this imbalance, and in the process secure new funds to support additional pro bono work. The creation of the Access to Justice Foundation by the Law Society, Bar Council, the Institute of Legal Executives and Advice Services Alliance provided a way to distribute this new funding. Uniquely, the foundation was contemplated by statute and later designated by the lord chancellor.

This is not an attempt to replace legal aid funding; in the same way that pro bono will never be a substitute for legal aid. But as the master of the rolls said last week ‘pro bono helps ensure access to justice, which is a central pillar of any democratic society’. The need for legal help will only increase as government cuts hit, as will the need to find extra funding for pro bono and not-for-profit advice organisations.

AmountSection 194 of the 2007 act is supplemented by Civil Procedure Rules 44.3C. The amount of the costs award is based on what a paying client would recover. The costs cover the period when free representation was provided and even where just one of the lawyers acted for free (normal costs can also be recovered for the fee-paid work). Lawyers simply quantify how much the free work would have cost a paying client at their usual rates and seek this sum.

LitigationLawyers should use pro bono costs just like normal costs. At the outset, clients should ideally be informed that pro bono costs can be sought upon winning. Conversely, it is important to note that, unlike the protection afforded by legal aid, a pro bono client remains at risk of adverse costs. However, there is a practical way to reduce this risk. Pro bono costs can be employed in correspondence and negotiation with the other side to help settle the case. This reflects an additional important aim of section 194 – to help level the playing field by both sides having a costs risk.

If a case is settled, the settlement agreement or agreed order can include the other side paying pro bono costs to the foundation. It is also worth noting that if a defendant makes a Part 36 offer that is accepted by the pro bono client, the lawyers can then apply to the court for a pro bono costs order.

At courtIf a pro bono case proceeds to a court hearing and is won, whether an application, trial or appeal, lawyers should ask the judge to order pro bono costs just as they would seek normal costs. This means filing and serving a statement of costs in advance, so summary assessment can be used. The County Court, High Court and Court of Appeal Civil Division have jurisdiction to order pro bono costs. The order should specify payment directly to the Access to Justice Foundation and once pro bono costs are secured, the foundation must be notified.

The other sideAll lawyers should be aware of pro bono costs – not just those working on pro bono cases. If a client faces a pro bono assisted party on the other side, their risk of adverse (pro bono) costs could be considerable. It is worth noting however, that the 2007 act does provide protection against pro bono costs if a party was represented ‘at all times’ by a pro bono lawyer or under legal aid. Most importantly, unpaid pro bono costs can be enforced like a normal costs award, either by the winning party or the foundation itself.

Access to justiceAs National Pro Bono Week recently emphasised, solicitors across England and Wales facilitate access to justice through their pro bono efforts. While much of this work is not litigious, where civil cases are successfully settled or won at court, the benefit can be maximised by seeking costs. Simply put, obtaining pro bono costs unlocks new funds for justice.

• Visit the Access to Justice Foundation website for more details.

Toby Brown is an officer at the Access to Justice Foundation